MARGIOTTI APPEAL (08/31/50)

August 31, 1950

MARGIOTTI APPEAL

Appeal, No. 217, March T., 1950, from order of Court of Quarter Sessions of Allegheny County, June Sessions, 1950, No. 118, in re Grand Jury Investigation of violations of the law in the use of city labor and materials of the City of Pittsburgh. Order reversed.

William S. Rahauser, District Attorney, in propria persona, and Earl F. Reed, Special Assistant District Attorney, with them Loran L. Lewis, Assistant District Attorney, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Bell and Ladner, JJ.

Author: Stern

[ 365 Pa. Page 331]

OPINION BY MR. JUSTICE HORACE STERN

We assume -- as fairly we must in the absence of evidence to the contrary -- that neither the District Attorney of Allegheny County nor the Attorney General of the Commonwealth has been guilty of any improper motivations in the performance of their respective official duties in connection with the events giving rise to the present controversy. The question for this Court to determine is whether statements of the District Attorney, his actions, failure to act, delays in action, or conduct in general, however free from any purposeful wrongdoing, justified the Attorney General, in the exercise

[ 365 Pa. Page 332]

of his quasi-judicial discretion, in concluding that it would be in the public interest and for the public welfare to supersede him in the direction and control of a grand jury investigation of violations of the law in the use of city labor and materials of the City of Pittsburgh.

In Commonwealth ex rel. Minerd v. Margiotti, 325 Pa. 17, 30, 31, 188 A. 524, 530, Mr. Justice SCHAFFER (later Chief Justice), in a learned and comprehensive opinion, after tracing the history of the office of Attorney General and the origin and evolution of its powers and duties, stated the conclusion of the court to be, "from the review of decided cases and historical and other authorities, that the Attorney General of Pennsylvania is clothed with the powers and attributes which enveloped Attorneys General at common law, including the right to investigate criminal acts, to institute proceedings in the several counties of the Commonwealth, to sign indictments, to appear before the grand jury and submit testimony, to appear in court and to try criminal cases on the Commonwealth's behalf, and, in any and all these activities to supersede and set aside the district attorney when in the Attorney General's judgment such action may be necessary."

In Dauphin County Grand Jury Investigation Proceedings (No. 1), 332 Pa. 289, 298, 2 A.2d 783, 788, this Court, speaking through Mr. Chief Justice KEPHART, said: "But the Attorney General, with his vast powers, recognized by this Court in Commonwealth ex rel. v. Margiotti, 325 Pa. 17, may supplement and supervise the grand jury in any investigation; he may, -- and it is his duty to do so if he believes the government is to be hindered in the lawful conduct of its affairs to the detriment of the security, peace and good order of the State, -- supersede the District Attorney in the conduct of the entire investigation ; or he may,

[ 365 Pa. Page 333]

if he believes better results will be obtained, act in conjunction with the District Attorney."

In Dauphin County Grand Jury Investigation Proceedings (No. 3), 332 Pa. 358, 364, 365, 2 A.2d 809, 812, 813, the question was considered whether there was any restriction whatever upon the power of the Attorney General to supersede the District Attorney of a county, -- whether "the extent of the discretion possessed by him" was "so illimitable as to be beyond the pale of judicial review." The conclusion of the Court was that, "from the legal standpoint, such discretion may be abused, and, if so, its exercise cannot be sustained"; the Attorney General, being a quasi-judicial officer, must not act arbitrarily or from caprice but only "upon the foundation of reason"; his discretion must be "reasonably based upon the attendant pertinent circumstances from which its exercise arises." And it was further held that "Whether the discretion vested in the Attorney General has been abused or has been exercised within proper legal limitations is necessarily a question for the determination of the court."

Such being the established law, which, as all the counsel engaged herein agree, controls the present issue, what are the facts to which it is here to be applied? Accepting only those not in dispute, it appears from the averments in the numerous pleadings filed, the exhibits thereto attached, and the testimony taken at the hearing in the court below, that, over the course of several years, employes of the City of Pittsburgh, with the connivance and even by the express direction of certain city officials, have been using for private purposes materials belonging to the city and labor paid for by the city. The first revelation of the existence of such illegal practices resulted from the happening of an accident to a truck in which a city employe, then working on city time and for city pay, was killed while being

[ 365 Pa. Page 334]

transported in a neighboring county for the purpose of working on a building there being constructed for a city official, and the truck was carrying a load of cement belonging to the city to be used on private property. This occurred on April 26, 1949, and the attendant facts and circumstances presumably became matters of public knowledge. However, no action was taken by anyone nor was any general interest apparently aroused until April 25, 1950, when the present Attorney General, then a private practitioner, instituted a suit against the corporation which owned the truck and against several individuals to recover damages for the employe's death on behalf of his widow and children, and also filed a claim against the city for workmen's compensation. A public agitation thereupon began for an official investigation of the probable extent to which city employes and officials had been criminally appropriating to their own use property of the city and labor of its employes, in violation of their public trust. The local newspapers published vigorous articles and editorials demanding such a probe and calling on the District Attorney to act through the medium of a grand jury investigation; civic organizations made similar demands, and both they and the newspapers began vehemently to criticize the inaction of the District Attorney and to suggest that the Attorney General's office should take matters in hand. At first the District Attorney reputedly said, in substance, that he was not interested and that he did not think a grand jury investigation was necessary.*fn1 The City Solicitor, under obvious legal handicaps, made an investigation,

[ 365 Pa. Page 335]

and the City Controller likewise started one but discontinued it because he could not compel the attendance of witnesses and because in a councilmanic investigation which began on June 13, 1950, and lasted until June 22, 1950, evidence of misuse of city labor and materials was presented against himself. At the conclusion of their investigation Council filed a report on June 30, 1950, which merely recommended the dismissal of two city employes -- not their criminal prosecution -- and censured two city officials. It may parenthetically be noted that during the course of this councilmanic inquiry a city clerk committed suicide after stating to his wife that, at the direction of his official superior, he had falsified public records bearing on these matters.

On the same day of the filing of the councilmanic report the District Attorney presented a petition to the Court of Quarter Sessions praying for an order directing the then present grand jury to have witnesses summoned before it for the purpose of investigating "violations of law committed by the employes of the City of Pittsburgh with reference to the use of labor and materials of the City of Pittsburgh in fields of endeavor of a private nature." This petition, notwithstanding the District Attorney's insistence to the contrary, was patently defective and legally inadequate in view of the rulings of this Court*fn2 to the effect that, in order to warrant a grand jury investigation there must be averred, on direct knowledge or knowledge gained from trustworthy information, that a criminal act has been committed and that there are other similar acts which show a system of crime has been, or is, in

[ 365 Pa. Page 336]

the process of commission. However, the court granted the District Attorney's petition and summoned and grand jury to report on July 10, 1950, for the purpose of the proposed investigation, and the District Attorney then assigned county detectives to assist in obtaining evidence and issued subpoenas for the appearance of witnesses.

%on July 5, 1950, the Attorney General was appointed to office, and on July 7, 1950, he served on the District Attorney an order, dated July 6, 1950, superseding him in connection with all matters relating to the criminal acts of any and all public officials and public employes within the jurisdiction of the court, "including the investigation of charges, the proceedings before the grand jury, the trial or trials, and any and all matters relating thereto." On the same day, July 7, 1950, the Attorney General petitioned the court for revocation of its order of June 30, 1950, summoning the grand jury. To this petition the District Attorney filed an answer; the Attorney General filed a replication, the District Attorney a rejoinder, and the Attorney General a sur-rejoinder. The Court below held a hearing, took some testimony, and entered an order holding that the Attorney General had abused his discretion in superseding the District Attorney; the supersession was accordingly vacated, the Attorney General's petition for the revocation of the order summoning the grand jury was dismissed, and the District Attorney was directed to proceed forthwith with the grand jury investigation. From this decision the Attorney General now appeals to this Court. It may be added ...

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